Judicial Activism and Halakah

Is what G-d commands ethical because G-d commands it, or does G-d command it because it is ethical?
SOCRATIC DIALOGUE
Euthyrpho
Soc. And what do you say of piety, Euthyphro: is not piety, according to your definition, whatever is loved by all the gods?

Euth. Yes.

Soc. Because it is pious or holy, or for some other reason?

Euth. No, that is the reason.

Soc. It is loved because it is holy, not holy because it is loved?

Euth. Yes.

Soc. And that which is dear to the gods is loved by them, and is in a state to be loved of them because it is loved of them?

Euth. Certainly.

Soc. Then that which is dear to the gods, Euthyphro, is not holy, nor is that which is holy loved of God, as you affirm; but they are two different things.

Euth. How do you mean, Socrates?

Soc. I mean to say that the holy has been acknowledge by us to be loved of God because it is holy, not to be holy because it is loved.

Euth. Yes.

Soc. But that which is dear to the gods is dear to them because it is loved by them, not loved by them because it is dear to them.

Euth. True.

Soc. But, friend Euthyphro, if that which is holy is the same with that which is dear to God, and is loved because it is holy, then that which is dear to G-d would have been loved as being dear to G-d; but if that which dear to God is dear to him because loved by him, then that which is holy would have been holy because loved by him. But now you see that the reverse is the case, and that they are quite different from one another. For one (theophiles) is of a kind to be loved cause it is loved, and the other (osion) is loved because it is of a kind to be loved. Thus you appear to me, Euthyphro, when I ask you what is the essence of holiness, to offer an attribute only, and not the essence-the attribute of being loved by all the gods. But you still refuse to explain to me the nature of holiness. And therefore, if you please, I will ask you not to hide your treasure, but to tell me once more what holiness or piety really is, whether dear to the gods or not (for that is a matter about which we will not quarrel) and what is impiety?

Euth. I really do not know, Socrates, how to express what I mean. For somehow or other our arguments, on whatever ground we rest them, seem to turn round and walk away from us.

JTS Chancellor Ismar Schorsch, Marching to the Wrong Drummer, Address to Rabbinic Assembly (1993)
Our laity is far more respectful of tradition [than the Rabbis.] They ask more of their rabbis religiously than themselves, not out of guilt or hypocrisy but out of deference to the past and a desire to see and realize its beauty and meaningfullness for themselves. While their observance is selective, they rarely presume to impose their momentary predilictions on the wisdom of a tradition born in relevation and tempered by time.
Nor do they come at us with ethical imperatives for that has never been the universe of discourse of Conservative Judaism or for that matter, Judaism. The ash heap of history is cluttered with proposals for reform rejected by our movement despite the bathos of ethical imperatives... The era of ethical imperatives ended with the prophets. The rabbis declared prophecy a marvel of the past and closed the canon...The rabbis rightly suspected ethical imperatives as subjective, arbitrary, and impermanent, a recipe for anarchy.

Rabbi Ephraim Oshry, Teshuvot from the Depths
The young man's mother had married before the Holocaust. Her husband was taken away by the Nazis and did not return after the war. She remarried and had a son, who became a rabbi. Decades after the war, the woman's first husband found "his wife." He was outraged that she had remarried and in anger, he publicized that her son, the rabbi, was a mamzer. The son, who lived in Australia and was married with several children, wrote the famous posek for guidance. Rabbi Oshry examined the responsa literature and with a confession of pain concluded that the young man was, unfortunately, a mamzer. He advised that the man should cease to be a rabbi so as not to profane the Divine Name and implied that, as a mamzer, he should not be married to a Jewess.
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It is not upon the hands of man to correct the injustice only the knower of thoughts and hidden things can grant salvation and assistance...
Therefore, I ruled that this young Rabbi should leave his service and the high post where he will serve as a spiritual leader in a community in Israel, and in regards to marriage he is a mamzer and forbidden to a Jewish woman. And the man, the husband of his mother (first husband) I called him and spoke with him chastisting words regarding spreading this information publicly what it will benefit him and what will it cause other than more hilul hashem, he already achieved his goal to cause the son of his wife to quit his job and to break his life spiritually and physically...

"Did you see the tears of the oppressed"
- Rav Benny Lau on Rav Ovadia Yosef z"l
That morning, Rav Ovadia had decided the family's fate. The family matriarch, a woman of about 80, had immigrated to Israel from France as a widow from World War II. Here in Israel, she remarried and built a large tribe that was a source of pride and joy—a family of children and grandchildren who engaged in Torah study and work; a family that was known for its admirable values and acts of kindness.
Suddenly, it emerged that the evidence that the woman's first husband had died during the war was unfounded; the "dead man himself had appeared."
Following this revelation, all of the woman's children and descendants were considered to have the status of "mamzer" according to Jewish law, as they were born of forbidden relations. A terrible tragedy. Rav Ovadia plunged into the thick of it, and after an intense process of inquiry and investigation that involved hearing testimony and cross-checking information, he liberated the family from their forbidden status. And here is where my story begins:
After they left, I remained with Rav Ovadia in the quite room. He held my hand and said in his soft words: "Feel my hand—it is wet, wet. Did you see their tears? Did you see the tears of the oppressed?"
And then, without any preparation, he raised his voice and said, paraphrasing a passage from Midrash Vayikra Rabbah (32:8). in which God undertakes to comfort oppressed people who cry and have no one to console them:
"I saw the tears of the oppressed" – These are the mamzerim.
Who oppressed these people? The Sanhedrin, which judged them strictly by the laws of the Torah.
"And there is no one to comfort them"? – I will comfort them!

The matter in its essence presented with a woman who, according to her words, was married to her first husband with huppah and kiddushin according to the laws of Moses and Israel by a Haredi rabbi, and she gave birth to three children. Afterwards, she separated from him by civil divorce arranged by the courts, but she did not receive a get from him. The three children remained with her, with the father paying child support. The husband then apostatized and married a non-Jewish woman. She too went and remarried by the civil authorities and had sons and a daughter who managed to be educated at the Haredi Beit Yaakov. She [the daughter] is distinguished by modest and proper behavior as any proper daughter of Israel. Now that the time has come for her to marry a Gd-fearing young man, the question of whether she can enter the Lord's congregation has arisen, since by the mother's account, she had not received a religious get from her first husband, and thus all of her children from the second husband are unfit to enter the Lord's congregation...
There is a double doubt here, as explained above, because perhaps she was married to her first husband without appropriate huppah and kiddushin, and if you say there was huppah and kiddushin perhaps the daughter is from her first husband, and its also possible she was religiously divorce, and the woman is not believed to make her daughter unfit to be married [and thus we do not believe] her claim to be married and not religiously divorced. And the poskim have already written to allow those unfit for marriage [ie mamzerim] by a double doubt.

Moral Obligation to Stand up Against Injustice: The South Africa Case
Should lawyers take positions as Judges in apartheid South Africa?
I took an appointment to the bench, as did a number of liberal judges, and we had to uphold the law of the country. It was a moral dilemma to do that, but the approach was that it was better to fight from inside than not at all. The moral dilemma came up when I had to apply the law.".."I hated in the morning the thought of having to do this for another day, [but] by the end of the day, I was exhilarated at the reaction and how important the work was." As a rule, he said, "I believe judges have a duty to act morally, and if they're dealing with laws which have an unjust effect, I think it's their duty -- if they can, within the powers they've got legitimately -- to interpret the laws and give judgments which will make them less harsh and less unjust."
-- Richard Goldstone, South African Judge
S v Govender, 1986(3) 960 (T) was a case in which an elderly Asian woman had been charged under the Group Areas Act with unlawfully occupying premises in a White group area. She pleaded guilty. In mitigation she explained that there was no accommodation available in an area in which Asians could lawfully reside and that she had exhausted every avenue in her quest for a lawful residence. As in many thousands of cases before that of Mrs Govender, the magistrate considered himself obliged to grant an order ejecting the accused and her family from their home. With the concurrence of Le Grange J, I held that on a proper interpretation of the legislation, the making of an ejectment order was discretionary. Among the considerations which I said were to be taken into account in deciding whether to make such an order were: 'the personal hardship which such an order may cause and the availability of alternative accommodation"
Goldstone could not, of course, hold the Group Areas Act unconstitutional. However, he could and did rule that "the practice which has grown up in these cases" of automatically ordering eviction in tandem with conviction should cease and "the sooner ... the better." For this, Goldstone had quite clear statutory authorization, because the relevant provision, enacted in 1966, stated that the convicting court "may" order eviction, not-as in the previous version of the Group Areas Act that it "shall" do so. Clear as the import of this statutory change appeared to Judge Goldstone, though, it apparently had escaped the attention of bench and bar for the preceding sixteen years, as reflected in the practice of automatic eviction.
The consequences of those words could not have been anticipated. No further prosecutions were launched under the Group Areas Act and by the time of its repeal years later those provisions were already a dead letter and many previously White areas had become residentially nonracial. Here was a case where pointing to the unfairness of the consequence of the manner in which the law had been implemented had not only legal consequences but also far-reaching practical ones.

To Resign or Not to Resign by Stephen Ellman (Moral Questions of whether to be a Judge in first place)
The first of these criteria we can simply call "taint." The judge who weighs whether or not to resign will surely consider how dirty his or her hands are getting. There is a limit to how much evil people can bear to perpetrate, or wade in, in order to do some modest good. In some countries at some times, moreover, the judge's hands may be getting covered with filth. For example, this taint might well have been too great for an anti-Nazi judge in Nazi Germany, even one who by continuing to serve on the German bench could occasionally have saved a Jew's life by finding that this particular Jew was not a Jew, and therefore not subject to execution for sexual relations with a non-Jewish woman. The sense of taint would have been all the more compelling because the rationale that saved this Jew might well have laid the groundwork for condemning others who did not fit the terms of the benign decision the judge had managed to render.
2. A second consideration, already implicated in my discussion of S v. Govender, is just how much good the judge can actually do. To what extent can judges render decisions that do justice in the midst of a complex of unjust laws?
3. The judge's calculus, however, is not yet complete. Besides weighing the personal taint involved in remaining on the bench, and the social good to be done by staying there, the judge should also consider what social harm he or she might do in the process. There are various ways that good judges might actually cause harm. For example, their presence on the bench might encourage victims of injustice to seek judicial solutions rather than political mobilization, and that choice might be a great mistake. Perhaps most troublesome, good judges might actually undercut opposition to injustice by lending a veneer of legitimacy to a fundamentally unjust enterprise. I think we heard this concern when Judge Utter expressed his belief that even in dissenting, he was still lending support to the notion that the death penalty could be made workable English

Courts Criticize but Rule in Favor of Law
A federal judge has upheld Mississippi’s cap of $500,000 on non-economic damages in medical malpractice cases.
The ruling came in a wrongful death lawsuit filed by the family of a woman and her unborn baby who died after being denied potential lifesaving treatment at a hospital on the Choctaw Reservation in Neshoba County...
“All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. In Mississippi, though, one’s suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child’s death, and leaves your children orphans. This is offensive,” Reeves wrote on June 13 in upholding the limits...
“The statutory damage limitations are arbitrary, and really only limit recovery in cases like this one, where the horrible suffering and resulting deaths require an award of damage in an amount in excess of the limits, not only to compensate the victims, but to create an incentive for private and government run hospitals to provide appropriate medical care and avoid medical errors and mistakes,” Jaques said...
Reeves said the law has “a discriminatory effect as Clemons and her family, leaving them without adequate remedy for their very real, serious injuries.”
“The standard of review requires doubts of a statute’s constitutionality to be resolved in favor of the law,” he said.

Rabbi Dov Linzer- What Makes Rabbinic Legislation Binding?
This sugya, then, reflects a limit on power of Rabbinic legislation – it cannot override Torah law. This limitation, however, is question in a sugya in Yevamot (89b-90b). The Gemara there states that it is clear that Rabbinic law can override Biblical law in two cases: (1) emergency situations, where the Rabbis have to act to protect the community’s physical or religious well-being and (2) if the transgression of Biblical law comes about only passively – such as not blowing the shofar when Rosh HaShana falls out on Shabbat. What is uncertain is whether Rabbinic law can override Biblical law even if it leads to active transgression, bi’kum vi’asey.
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There are, I believe, two ways of explaining how, notwithstanding the above, Rabbinic law could override. One is to build on the case of “emergency powers.” The Gemara in Yevamot shows that this is an accepted power that the Rabbis have, and it parallels the role of a prophet, another type of religious leader. While we must also ask how we know that this power exists, if we accept that it is a power of the Rabbis, then their ability to legislate in a way that leads to passive transgression of Biblical law can also be seen as a form of emergency powers. Since all Rabbinic legislation is to strengthen the religion, then we can argue that emergency powers can be exercised to protect the religion and can allow for active violation on a one-time basis, and for ongoing violation, as long as it comes about passively. This approach is indicated by a number of Rishonim in Yevamot (Ramban, Rashba, Ritva on 90b), and in other poskim (Semag Positive Commandment 212, based on Yeraim; Beit Yosef Orah Hayyim 418, end). The problem with this, however, is that it is a little incongruous to think that all Rabbinic legislation that overrides Biblical law – including, say, not blowing the shofar when Rosh HaShana falls on Shabbat – is based on the concept of “emergency powers.” And, as a student pointed out to me, we know how the concept of emergency powers can be applied beyond recognizable boundaries, as is evidenced by the case of Egypt, which has been under emergency law for almost three decades.
The other way to approach this is to consider parallels where Biblical law can be overridden in a passive manner. The most obvious parallel is that of human dignity. Human dignity is understood to be a Biblical concept, and it has the power to allow for the passive transgression of Biblical law (Berakhot 19b). The principle seems to be: a halakhically-defined Torah value can override Biblical law, at least passively. Now, this does not apply to anything we call a Torah value. It has to be halakhically defined and acknowledged to have this power. Another example of this may be that of tza’ar ba’alei chaim, which, once recognized by the Gemara to be a Torah value with halakhic weight, can also override certain restrictions. If this is correct, then, it is possible that Rabbinic legislation is an embodiment of defined Torah values. First, the value of respecting Rabbinic authority is implicit in every act of Rabbinic legislation. Beyond that, the Rabbis legislate to uphold Torah values. As such, every act of legislation is an implicit statement that a Torah value here is at stake, and if the legislation is not followed, may be compromised. As such, every legislation recognizes and gives weight to a relevant Torah value applied in a given situation. As such, it is this recognized Torah value that allows and even mandates us to set aside a Biblical law, as long as it will only be transgressed passively.

Overturn an Unjust Law or Defer to the Legislature?
Defer
A federal judge has upheld Mississippi’s cap of $500,000 on non-economic damages in medical malpractice cases.
The ruling came in a wrongful death lawsuit filed by the family of a woman and her unborn baby who died after being denied potential lifesaving treatment at a hospital on the Choctaw Reservation in Neshoba County.
U.S. District Judge Carlton Reeves applied the caps in the case, finding that his hands were tied and the Mississippi Supreme Court would likely find the caps constitutional.
But Reeves found fault with the caps and what he perceived as their unfairness.
“All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. In Mississippi, though, one’s suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child’s death, and leaves your children orphans. This is offensive,” Reeves wrote on June 13 in upholding the limits.
Overturn
By BRENDAN FARRINGTON, Associated Press
TALLAHASSEE, Fla. (AP) — Caps on how much money patients injured by a doctor's mistakes can receive were declared unconstitutional by the Florida Supreme Court on Thursday, a decision that strikes down one of former Gov. Jeb Bush's major policy victories.
The court ruled that the caps placed into law in 2003 were arbitrary and there's no proof that they reduced malpractice insurance rates that lawmakers were attempting to contain. Even if they have, there's no present crisis to justify the caps. In a 4-3 decision, justices also said the caps unfairly hurt those most severely injured by doctors' mistakes.
"The caps on noneconomic damages ... arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries," the court said.
Section 766.118, Florida Statutes, has the effect of saving a modest amount for many by imposing devastating costs on a few— those who are the most grievously injured, those who sustain the greatest damage and loss, and multiple claimants for whom judicially determined noneconomic damages are subject to division and reduction simply based upon the existence of the cap. Under the Equal Protection Clause of the Florida Constitution, and guided by our decision in [St. Mary’s Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla. 2000)], we hold that to reduce damages in this fashion is not only arbitrary, but irrational, and we conclude that it “offends the fundamental notion of equal justice under the law."
We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious - 22 - discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution. Accordingly, we affirm the Fourth District’s decision, and remand to the district court for further proceedings consistent with this opinion. It is so ordere